HR Question: Employer Rights Surrounding Medical Marijuana

Question: Can we advertise for a specific gender for home health aide positions? (Some of our clients feel very strongly about having a same sex aide help them with their bathing and changing needs).

Answer: This question has been reviewed by the Equal Employment Opportunity Commission as it relates to employment discrimination, particularly in service and health-related professions. And while the courts have consistently ruled that employers in personal service firms cannot discriminate based on “client preference” relating to race or national origin, this issue of gender preference has been open to more interpretation. Here’s why:

While Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race (color), sex, religion and national origin, it does allow an employer to have hiring preferences based upon “bona fide occupational qualifications” (BFOQs).

Some employers have taken these BFOQs to mean that if a client or patient demands not to be taken care of by someone outside of the patient’s race or nationality, then the employer could use the client’s demand as a BFOQ. The EEOC and the courts have expressly said that race can never be a BFOQ and that there are very few instances where national origin could be a BFOQ (and those instances are generally around language barriers, not cultural or religious ones).

However, in the case of sex/gender, the courts have ruled that it is unlawful gender discrimination in employment for a healthcare employer to have a policy saying that female patients get only female caregivers while male patients may be assigned either male or female caregivers. However, a health care employer can honor a specific request from a patient for a same-sex caregiver, without violating the laws against discrimination, but only if the care to be given involves issues of intimate personal privacy, such as a patient’s preference not to have an opposite-sex caregiver assisting with toileting or cleansing the patient’s body. The courts have gone on to say, however, that there must be a request from the patient for a same-sex caregiver, rather than a blanket policy excluding opposite sex caregivers. The blanket policy initiated by the employer could lead to legitimate charges of gender discrimination.

We would encourage you to review the types of work your employees are doing for your clients and document the instances of intimate personal care where the client has requested an aide of a certain gender. Do not institute a blanket policy where female clients are attended by female aides and male clients by male aides. Review each situation on a case-by-case basis to ensure that there is no unlawful discrimination or discriminatory intent.

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